No, Having Open WiFi Does Not Make You 'Negligent' And Liable For $10,000

from the no-freaking-way dept

That Anonymous Coward was the first of a few of you to send over the news that one of the "John Does" sued by Corbin Fisher/Liberty Media has settled. Corbin Fisher is a porn company that has followed the footsteps of others down the mass infringement lawsuits path that many of us note feels a lot more like a shakedown process than a reasonable use of copyright law. Even more troubling, in our view, is that one of the theories presented by the company is that anyone who has an open WiFi network, and uses that as an explanation for what happened, is guilty of negligence. Given the vast number of good reasons to leave a WiFi network open, we found this quite troubling.

And so we're extremely worried about this particular settlement, which you can see embedded below. The full payout by the Doe is $10,401, but the breakdown is as follows:

$200 for innocent infringement

$200 for contributory infringement

$1 to pay off the conspiracy charge... while not admitting to any conspiracy (another theory presented is that in using BitTorrent, you enter into a "conspiracy" -- a claim we won't debate this time around, but may revisit another time)

$10,000 for the negligence of having an open router

While we have issues with a lot of this, it's that last part that is super troubling. While this is not a legal ruling, just the fact that it's in a settlement will allow Corbin Fisher and others to wave the document around, warning others that if they want to claim that their WiFi was open -- a potentially legitimate defense -- they now risk a massive fine for so-called "negligence." This is insulting, dangerous and ridiculous. There are all sorts of legitimate reasons to leave your WiFi network open and almost none of them amount to "negligence," by any stretch of the imagination.

As I've mentioned in the past, I'm also surprised by the fact that the lawyer representing Corbin Fisher/Liberty Media in this case is Marc Randazza, who has done some fantastic work in the past and present to defend free speech rights -- including taking on a variety of defendants against copyright troll Righthaven, despite its efforts bearing some striking similarities to what Corbin Fisher is doing here. In fact, Randazza has been at the forefront of many of the recent victories against Righthaven, and the various attempts to force Righthaven to pay up for its abuse of the court system to shake people down.

I like and respect Randazza and have sent a few interesting cases his way when people I know have needed legal help concerning attacks on their free speech rights. He's also helped us at times when we've been threatened with bogus lawsuits. But I still have trouble understanding his position on these Corbin Fisher cases, which strike me as being the same, or in some cases, worse than some of these other efforts. Given that, I emailed Marc, telling him I was going to write a post about this settlement and the fact that I think it's a horrible and dangerous result, that will be used to harass people who have open WiFi networks for perfectly legitimate reasons, and asking if he had any comment. He wrote back a lengthy response, which he also sent to TorrentFreak, who posted it as an article.

This is one time where I think Randazza is 100% wrong, and is actually doing significant harm to causes he claims to support. Thankfully, the folks at the EFF (who list Randazza as a lawyer to talk to if you're hit up for money by copyright trolls) have stepped up to debunk the legal basis of Randazza's argument, which is effectively based on a famous case on negligence involving tugboat radios. The EFF points out that such negligence claims for a service provider are clearly barred by Section 230:

Perhaps hoping to avoid this limitation, the essay suggests that operators can be held liable under a general tort theory of negligence (meaning, it's not a copyright claim, just a general injury claim). But that approach immediately crashes against another legal wall. Section 230 of the Communications Decency Act offers broad immunity from tort claims (including negligence) to providers of “interactive computer services” for claims arising from the activities of their users. The statute’s broad definition of interactive computer service includes “specifically a service or system that provides access to the Internet.” (emphasis added).

What I find even more troubling about Randazza's argument and especially this settlement is how it will be used (whether by Randazza or others) to falsely imply that having an open WiFi network -- which is perfectly legal -- is not a defense when sued. In fact, the really nefarious part of this is that not only does it imply you can't use that defense, it implies additional liability for mentioning this very legal use of WiFi as a part of your defense. Anything that effectively takes away a legal defense against a questionable legal claim, and implies that you may actually be hurting yourself just for bringing it up, is immensely troubling.

Randazza claims that negligence claims are really a way of saying "you should have seen this coming." But that's ridiculous. It implies that anyone leaving open WiFi must assume that people will use that open WiFi for illegal activity. That's a huge leap. There are security reasons as to why you might want to secure your own WiFi... but there are also alternative ways to secure your home surfing and home network, while still leaving an open WiFi network. Randazza's statements suggest that's not possible and that anyone opening up their home WiFi should know that it's likely to be used for illegal activity.

Like the EFF, I'm also troubled by the way that Randazza seems to ignore the basic concepts of properly applying liability. We have safe harbors in the DMCA and the CDA for a very specific reason: to have people properly apply liability to the actual actors, and not the third party service providers and intermediaries. We have a long tradition in US law, even outside of those explicit safe harbors, that liability should be applied to the actual actors, rather than 3rd party service providers. Randazza talks about how leaving your WiFi open leaves you open to having your house raided by police if someone uses your router to transmit child porn. But just because the police might raid your house improperly, that does not suddenly make it negligent to have an open router. Instead, it should raise questions about the investigation and the decision to raid the house.

In fact, we keep seeing that even when someone uses open WiFi to commit a crime, while law enforcement may investigate, they're still looking for the person who actually did the crime. The fact that Randazza ignores this and basically says that because you might get raided, it's negligence, is really troubling.

Furthermore, Randazza stretches liability to ridiculous levels with some guilt by association:

The kind of person who would steal your car is probably the kind of person who would commit other crimes (or just do something stupid). So if you leave your keys in your car, and someone takes it and drives it into someone’s fence, you’re at least partially responsible for the damage. If the car thief runs off, who should pay for the damage? The fence owner or you? It would seem that between those two parties, you would be more responsible than the fence owner. You wouldn’t say that the fence owner should have built a better fence, would you?

That’s what negligence is: It is the law saying “You really should have seen that coming.” When you do something careless, and that carelessness costs someone else money, you pay the ”carelessness tax” – Negligence.

And the kind of person who would steal wifi is more likely to steal something else, isn’t he? So if you invite wifi theft by leaving your home network open, you’re more likely than not also inviting more.

But that's incredibly misleading (beyond the false use of "stealing"). First of all, those who have open WiFi should not have "seen it coming," because there are lots of perfectly legitimate reasons to offer and use open WiFi. Nothing about doing so should make you liable for what people do on the network, and that's exactly what the law says. Leaving your network open is not "inviting theft." That's simply misleading.

Finally, there are tremendous benefits to the public for there to be more open WiFi available. Getting settlements like this and implying that having open WiFi is negligence and potentially costly, serves to hurt such connectivity and holds back perfectly legal and reasonable options for many people to connect to the internet. While Randazza believes there are ethical issues here, I tend to side with two different NYTimes ethicists, who both came down in favor of open WiFi being perfectly ethical. In many ways, it's beyond ethical, in that it's altruistic, providing the community around you with something useful. Efforts to suggest potential legal liability for such actions strikes me as really nasty and an affront to the belief that helping others connect to the internet is a good thing.

At the end of his response, Randazza notes that he respects the perspective of people who "don't like the negligence claim," and suggests that it's the law we're disagreeing with, rather than his application of it. But I disagree entirely. As the EFF noted, there is no case law that says an open WiFi is negligence, and Randazza's position here seems like a pretty big stretch of the law, especially in light of Section 230 safe harbors. Randazza told me over email that he completely understands and appreciates that folks like myself disagree with him on this, but I think he should revisit his overall approach here. He also mentions that he makes clear to his clients that he will not represent them if he believes it will harm the First Amendment, something (as mentioned earlier) he's famous for helping to protect. But I'd argue he fails on First Amendment grounds in bringing (and defending) these negligence claims.

Trying to get around the proper application of liability and blaming third parties for actions they did not commit, while pushing to shut down a channel of communication, seems very much an attack on basic First Amendment principles. It's an attempt to use legal pressure to stop a form of speech. Yes, some of that speech may be infringement, but the vast majority of speech via open WiFi is not infringement or child porn as Randazza suggests. So, as a staunch First Amendment defender, I hope that he will reconsider his position in bringing such a negligence claim -- and, I hope that he will reject the further use of this highly questionable settlement.

I'd suggest not leaving your wifi open.

The EFF points out that such negligence claims for a service provider are clearly barred by Section 230:

Can you point to a single court that considered someone leaving their wifi open to be a "service provider" entitled to immunity under Section 230? Why in the world do you think a court would consider granny with an open wifi to be a "service provider" as the law defines the term? Remember, your personal definition of "service provider" is completely irrelevant.

Pornography is similar to alcohol and drugs, a little bit is good for you, but being exposed to it all the time erodes your psyche. Seems that being a porn lawyer is plain dangerous as it washes away the ethical boundaries.

Therefore I'm not surprised that it is possible to be a (good guy in Righthaven cases) and a bad guy (in bittorrent lawsuits) at the same time, because notions of "good" and "bad" are severely distorted in a porn lawyer's eyes.

I'm not making any moral statements, just observing and trying to understand.

Re: Re:

Interesting how you jumped up to call TDC a pirate... he was simply talking about arming himself in defense against being (wrongly) accused and accosted for what amounts to 'leaving the door open through which pirates might enter.' And, truthfully, he was probably commenting more on the apparent escalating tensions over the government becoming too powerful.

But hey, you get to accuse another TechDirt reader of being a pirate, so... yeah. Cheers.

Re: Muddled Observation

Also, and more importantly, there is no such thing as a "good" or "bad" lawyer.
Lawyers are just a symptom of a diseased legal system--one so complex the average citizen is incapable of operating within it at any real proficiency.

No Having Open WiFi Does Not Make You 'Negligent' And Liable For $10,000

I think you and the EFF are missing the point. Negligence is a general tort. If you're going to argue it's not negligence, then explain why in legal terms it's not negligence. What's the problem with it? I'm sure there's lots of good arguments, like, e.g., there's no duty. If you want to argue it's not negligence, that's fine. But please make an argument that makes sense and is based on precedent.

The EFF article is misleading. The claim isn't "negligent infringement," which obviously doesn't exist. The claim is simply negligence. Claiming that DMCA and Section 230 shields the average person who maintains an open wifi seems like a stretch to me. Show me one court who has agreed with this.

I know you want to be a legal blog without the hassle of understanding the law, but it's getting old. As it is, it seems you'll jump on the bandwagon of any legal claim you like the outcome of, no matter how faulty or baseless the reasoning.

WEP?

Less Dangerous Than An Open Mailbox

Randazza talks about how leaving your WiFi open leaves you open to having your house raided by police if someone uses your router to transmit child porn. But just because the police might raid your house improperly, that does not suddenly make it negligent to have an open router.

Receiving child porn is a federal crime, whether you wanted it or not. So, if someone sends child porn to your mailbox, the police may raid your home and arrest you. What's more, you will probably be convicted. This is why no one should have a mailbox that is open to receiving mail sent by strangers. This is an even greater danger than open WiFi.
So, I would ask anyone who is arguing that open WiFi is dangerous if they have a mailbox.

Re:

Can you point to a single court that considered someone leaving their wifi open to be a "service provider" entitled to immunity under Section 230? Why in the world do you think a court would consider granny with an open wifi to be a "service provider" as the law defines the term? Remember, your personal definition of "service provider" is completely irrelevant

The law defines service provider as:

The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

An open Wifi network is clearly a system that enables computer access by multiple users. I'm surprised you would argue otherwise. In fact I'm having a hard time understanding how anyone could possibly claim that an open WiFi provider does not qualify under the law.

As for the "name a single court" I'll turn it around. Point to a single ruling that argues otherwise.

Re:

How about having Randazza actually support the claim of negligence in legal terms. Seems he has failed to do the same thing you are accusing Mike of.

That’s what negligence is: It is the law saying “You really should have seen that coming.” When you do something careless, and that carelessness costs someone else money, you pay the ”carelessness tax” – Negligence.

This is hardly a legal definition of negligence. The person and lawyer bringing the law suit have the burden of establishing negligence, not the person being accused.

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The EFF article is misleading. The claim isn't "negligent infringement," which obviously doesn't exist. The claim is simply negligence. Claiming that DMCA and Section 230 shields the average person who maintains an open wifi seems like a stretch to me. Show me one court who has agreed with this.

No. You are being ridiculously misleading here. The EFF article noted that the it was the original article that was confused so the EFF argued why *if* Randazza meant negligent infringement that was wrong *AND* if he just meant simple negligence it was wrong.

Why you ignore that I don't know.

And give up this crap about that you need to show a court who has ruled that an open WiFi is a service provider. You can't show a court that has said otherwise, and the common definition in the law appears to apply to open WiFi easily.

I know you want to be a legal blog without the hassle of understanding the law

Actually, I don't want to be a legal blog at all. This is a blog about the business of innovation. You lawyers just keep getting in the way.

And, seriously, my argument is based on what the law actually says and also what the EFF says. Are you seriously claiming that the EFF is making a statement without "the hassle of understanding the law."

The only thing getting old is you lashing out childishly at me. What happened to you insisting that you were going to stop being so dickish? When you contribute to the conversation, that's great. When you just start acting like an angry jealous drunk, it makes you look silly.

As it is, it seems you'll jump on the bandwagon of any legal claim you like the outcome of, no matter how faulty or baseless the reasoning

Hilarious. I explained the basis of my argument. You didn't. You just run around insulting me every day. Grow up.

Re:

This was done verbatim but you know that because you address it in the very next paragraph.

"Claiming that DMCA and Section 230 shields the average person who maintains an open wifi seems like a stretch to me. Show me one court who has agreed with this."

Show me one court that has ruled open wi-fi was negligence. In the absence of a precedent for either interpretation the EFF's interpretation is at least as likely as yours. I'd say more so because the EFF's interpretation is actually written by a lawyer.

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You know a lot of ex-con drug dealers, do you? Why is that so? FWIW, Gabriel has the correct perception of my post, whereas you just went off on a tangential rant. Enjoy the company of your ex-con drug dealing buddies, Zippy. I'm sure they give you countless other insights into politics and humanity.

Just not sure

I think that I'd have to say that everyone should just open their wi-fi up. Bust it all out. Why not? Just get yourself a proper setup that ensures you have a fat pipe for yourself whenever you need it.

Apply the law to the people that break it. Don't try to molest someone that holds different access views then your own. Stop trying to force your business problems down the throats of people because it makes your job just a little bit easier (apparently the job is extortion).

A freshly paved road is fun to drive fast on ... see where I'm going with that?

Most of us could give a rats ass about protecting content located somewhere else, else, that's your bloody job..

Negligence... eat a fudgicle with that.

Not entirely unlike someone attempting to force their own moral views down other folks' throats this. I despises its.

Re: Re: Muddled Observation

I did not want to offend anyone, as it was just my questionable opinion based on evidence: I watch pornography 10 hours a day, and my psyche is completely destroyed.

As for good-bad, yes, no such categories exist in presence of excuses. "I just followed the orders" - said one officer. It's a complex question, but I think that there should be a threshold, above which ethical decision is the only possible one, regardless of orders and excuses.

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Well, since our country was obviously founded by a pack of foul, ex-con, drug dealing, slave owning, freetard thugs with no morals save "ARRRRRR... that be mine whelp!", you weren't just conflating clearly distinct issues to string up some painfully brittle straw man...

[/sarc]

If you think "I need a gun" is the end of that thought train, you need to rethink the average atten

Re:

”While we have issues with a lot of this, it's that last part that is super troubling. While this is not a legal ruling, just the fact that it's in a settlement will allow Corbin Fisher and others to wave the document around, warning others that if they want to claim that their WiFi was open -- a potentially legitimate defense -- they now risk a massive fine for so-called "negligence." This is insulting, dangerous and ridiculous. There are all sorts of legitimate reasons to leave your WiFi network open and almost none of them amount to "negligence," by any stretch of the imagination.” – Mike

Translation: my problem is with the fact that people ‘in-the-know’ are using a false claim of negligence to convince people that a legitimate defense is not available to them. These bullies would say “look at this case… that defense didn’t help THEM! So pay up!”

” Randazza claims that negligence claims are really a way of saying "you should have seen this coming." But that's ridiculous. It implies that anyone leaving open WiFi must assume that people will use that open WiFi for illegal activity. That's a huge leap. There are security reasons as to why you might want to secure your own WiFi... but there are also alternative ways to secure your home surfing and home network, while still leaving an open WiFi network. Randazza's statements suggest that's not possible and that anyone opening up their home WiFi should know that it's likely to be used for illegal activity.” - Mike

Look! Another example of Mike arguing about whether this is a case of negligence.

”But that's incredibly misleading (beyond the false use of "stealing"). First of all, those who have open WiFi should not have "seen it coming," because there are lots of perfectly legitimate reasons to offer and use open WiFi. Nothing about doing so should make you liable for what people do on the network, and that's exactly what the law says. Leaving your network open is not "inviting theft." That's simply misleading.” – Mike

And yet another argument over the validity of saying “it’s negligence”.

Yes, Mike talks about safe harbor laws… which does apply to negligence in relation to open WiFi (as he notes in the article). If I’m a provider (which the law does appear to support the definition being applied to someone with an open WiFi), and someone uses my service to break the law, I am not held liable (read: not negligent) for that act.

So, tell me where Mike didn’t talk about the general tort application of negligence in this case… I’ve already pointed to three examples where he did.

Re: you get what you vote for

Intentionally open...

As a software developer, and tester of alternative OSes, I often have to keep one of the SSID's on my router open (using dd-wrt, I have configured multiple SSIDs with different encryption methods).

This is out of necessity because the OSes I test often have broken or immature wireless stacks that are in development. It doesn't help that most wifi hardware uses closed-source drivers and firmware that must be reverse-engineered for use in alternative OSes.

Basically, by forcing me to close my wifi router, one would be insinuating that I am not allowed to use the equipment as it was designed to be used. If wifi routers must be closed *BY LAW*, then wifi router manufacturers must not allow them to operate in an unsecured mode.

There is also no law saying I can't leave an ethernet switch at the end of my driver which is connected to my internet connection so that people who wander by can access the internet by plugging into it.

Go fuck yourselves. I'll let people use my internet service if I want to - especially if my TOS with my ISP allow it.

Re: Re: Re: Muddled Observation

I would offer the possibility there was some intrinsic weakness trained into one's psyche prior to porn having "destroyed" it. Something which brainwashed it into trains of thought which blindly accepted things unquestioningly without proof or evidence of any sort.

In short, a psyche with a cracked foundation will crumble regardless of the cause. The cause of the crumbling was only the catalyst, in no way responsible.

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There's nothing effing "negligent" about an effing open wi-fi - it's a choice - where either way you go is a LEGAL option - effing period. Eff law and precedent - until there is a "law" that states open wi-fi is NOT LEGAL then even attempting to apply effing negligence is effing stupid (not unlike lots of "laws" imo)

Crimes are committed yes? Then find the effing criminal and stop trying to slide by and make a buck on what you *perceive* - effing thieves.

Re: Re: Re: Re: Muddled Observation

I don't necessarily disagree, although I wouldn't paint it black-and-wight: some people are more prone to self-destruction than others, and not all of the latter are brainwashed, cracked individuals. People are weak creatures, and it is not necessarily bad thing.

...therefore

"...porn erodes your psyche."

I'm also deeply offended by this statement, but the original wording conveyed a different meaning, wasn't it?

One of the most popular quotes found in any movie theater in Soviet Russia was:

"Cinema is the most important among all the arts. V.I.Lenin"

The original was a bit different though:

"While population is illiterate, cinema and circus are the most important among all the arts".

Re: Re: Intentionally open...

Correct - I was only pointing out that these routers are being used "open" as designed, not as if someone is mistakenly using them wrong.

If the government does start forcing secured communications for wifi routers (a device operating in a frequency set aside by the FCC for personal uses), then we have a bigger problem. At what point do they just admit they don't want people to communicate with other people unless they've authorized it first?

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Re: Sure, open WiFi is bad

I do not believe that an open WIFI connection is bad at all, until your own needs are slowed to a crawl that is. It's propaganda.. it's a message that you're hearing that really originates from folks that can't guard their own castles.

Re: Re:

"Yes, Mike talks about safe harbor laws… which does apply to negligence in relation to open WiFi (as he notes in the article). If I’m a provider (which the law does appear to support the definition being applied to someone with an open WiFi), and someone uses my service to break the law, I am not held liable (read: not negligent) for that act. "

That is not what Section 230 says. Section 230 says you will not be treated as the publisher or speaker of something a user of your service says.

Negligence has nothing to do with that. Rather, the negligence claim is that you acted negligently in providing the service. Section 230 says nothing about that.

Re: Re: Yup

Re: Re: Muddled Observation

Well, bad lawyers are a symptom of a diseased legal system. Lawyers in general are just a symptom of our choice of legal system. Has it become diseased? No doubt. Are doctors symptoms of a diseased public? Hmm...actually, now I'm not sure.

Re: Re:

Negligent means unreasonable in a situation where you owe someone a duty, your unreasonableness causes you to breach that duty, and your breach causes actual harm to the person to whom the duty is owed.

So, is the 80-year-old grandmother who finally got her wi-fi set up so she can skype with her grandkids in Ireland NEGLIGENT for leaving it open?

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Come on, Mike--don't do the lawyers thing. The EFF itself is full of them, and I'm sure you don't have an axe to grind with them. Nor the ACLU, on their good days. I am one, and I'm currently helping a DOE defendant defend against exactly the kind of open wifi case described here. Am I getting in the way? I hope not. I try to interweave my legal knowledge with my real-world self on this blog to offer my own two cents, which are hopefully worth it. Are you saying that I should quit the first part?

What about possible negligence on the part of Wi-fi providers for not sending you your router closed, with the key for you only? I mean, if closed:good, open:bad, then whose DUTY is it to close the thing in the first place? But then, of course, this pissant smut-peddler would have to sue...um...AT&T or someone equally 5000-pound-gorilla-ish. I'd love to see AT&T as a DOE defendant, just one time--40 lawyers show up for DOE #26,416...case dismissed.

Re: Re: Re:

Perhaps hoping to avoid this limitation, the essay suggests that operators can be held liable under a general tort theory of negligence (meaning, it's not a copyright claim, just a general injury claim). But that approach immediately crashes against another legal wall. Section 230 of the Communications Decency Act offers broad immunity from tort claims (including negligence) to providers of “interactive computer services” for claims arising from the activities of their users. The statute’s broad definition of interactive computer service includes “specifically a service or system that provides access to the Internet.” (emphasis changed)

So really everyone who buys a wireless router is guilty of negligence because every wireless router is sold with security turned off and the username/passwords to the default networks typically known (admin/password) and SSID's broadcasting. If I buy a router, connect it to my internet, and then something bad happen while configuring it, because it wasn't secured, the action could be viewed as negligence.

Of course that's over simplifying a little, but it fits in with what's being said.

Re: Re: you get what you vote for

Randazza said "And the kind of person who would steal wifi is more likely to steal something else"

Using open wifi is not, in any sense stealing and more than taking a penny from the dish at the checkout stand is stealing.

I leave my wifi open, quite intentionally. It's a charitable act, a small bit of giving back to the community. It's certainly not negligence in any sense that I (as a non-lawyer) understand it. What am I neglecting? I owe no duty to copyright holders to act as their policemen or protectors.

I do understand that I run a risk of having to talk to a cop should someone use my wifi for an illegal purpose. That's fine, and I'll cooperate with them. But I have done nothing wrong any more than if I left my tools available for anyone to use and someone uses them to break into a house.

Re: Re: Re: Re: Re:

Well, there doesn't have to be a law prohibiting an action for an action to be deemed "negligent" in a common law negligence suit.

There *is* a rule that if something *is* prohibited by law, and you do it, and someone is harmed in the way you would expect, that is considered "per se" negligence (I'm simplifying a bit).

So, for example, if the speed limit is 60mph, but it's hailing golf balls and the wind is blowing 90mph, it might actually be negligent to drive 59mph, even though there is no law on the books against it.

Re: Re: Re: Re:

yes, to the extent they are claiming it offers a defense to a claim that providing the open wifi is a negligent act that that causes harm and satisfies all the other elements of a negligence claim.

No, to the general, and somewhat vague, statement that Section 230...offers broad immunity from tort claims...for claims arising from the activities of users. It may protect the service provider from a claim that it is liable for it's user's negligence, but not from its own (alleged) negligence in providing the wifi.

Re: Re:

With the utmost sincerity, I appreciate the critique of the theory. I may disagree, but we can spar with our friends, and choosing them based upon how much they agree with us is a shitty way to set up a meaningful existence.

I disagree with a few of the opinions in this piece though. I am uncertain how my theory " is actually doing significant harm to causes [I] claim[] to support." I disagree with the claim that mine is an anti First Amendment position. You're not going to find a more ardent supporter of First Amendment rights than me. In fact, my engagement letters make it clear that I will withdraw from representation of a client if their interests conflict with the First Amendment. In fact, my firm's policies operate on a modified version of the laws of robotics, in which the First Amendment is the prime protected party.

I simply see no free speech issue with holding an open wifi operator liable for negligence, if the harm is forseeable. The question for the court may very well be whether it was forseeable, and I am prepared to meet that challenge. I even expect that I will find myself standing across the aisle from people I consider to be my friends and allies in other fights.

But, I stand behind the theory. I respect the dissent from it. But come on, you can't say that holding someone responsible on a "you break it, you buy it" theory does harm to the First Amendment. Don't diminish your other fair and reasonable arguments by throwing that out there to see if it sticks. It does not.

Despite that, I do think that this article presents the most measured, professional, and educated view of the opposing view that I have read thus far. Let us see where the marketplace of ideas and the courts lead us, because I think that this debate is long from over. Should it pan out that the theory is eventually discredited, I will feel that it was still a worthwhile endeavor to present it.

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Sound good so far and is in line with my understanding of negligence as whole.

So, with your driving example (which I like because I like driving) how could one .. "charged" with negligence not prevail (providing that there were no blinking reduced limit notifications along the route etc.)? Am I to believe that I can be notified with a threat of a (valid) lawsuit by some third party that happens to have a weather report and a speed cam sporting a 1 under signature?

Taking your example further, my understanding, as it pertains to WIFI, is that the road crews (managers etc) would be the "responsible" party as they're allowing the driving to occur in inclement weather (or weather deemed inclement by said third party that is).

I have yet to come across any idea or valid reasoning that would encourage me to believe that by having an open WIFI I could be, truly, considered negligent under any scenario. That is: it either is or is not my car on the road .. and the WIFI *is* that road.

Perhaps an old school "MOTD" is in order? One that states "You are responsible for your actions on this network"? or some such?

What Mike fails to understand is that an open wireless router is NOT a service. You do NOT become a service provider just by offering randomly a service, with no contract or attachment to anyone. But in Mike's world, you do. And you'd go to court and lose. But hey, it's Mike's world. I would check with my local DA first. But lets all take Mike's word for it and get sued to hell, and be forced to settle.

Re:

What about going to the source of the open-ness, sir? In other words, how about those who ship routers in an open state? I agree with the framework you lay out in the ether for negligence liability, but I just don't see the duty on the part of the router recipient/owner, and I don't see the foreseeability at all. Is it a case-by-case basis, where Granny gets a pass, but a 16-year-old is liable? Because that seems incredibly shaky. But on the part of the router seller? Well, they know about the open-closed distinction, are uniquely situated to change it before any harm can result, and so should be the ones bearing the duty. So, again: why not sue them? If I drive a car with, let's say, an accelerator that sticks, and I have no reason to know (or, better, the average consumer has no reason to know) about the sticky accelerator or its potential to harm, and I crash into your house because my car won't slow down, am I liable, or is...well, let's say Toyota?

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Come on, Mike--don't do the lawyers thing.

Heh. I'm not *blaming* all lawyers. I was just making an observation that legal disputes are a big part of discussions on the innovation business these days. He's complaining that this is a law blog. I'm just pointing out that it's not supposed to be, but that's the nature of the innovation business these days.

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OK... I see what you mean. I'm not lawyerly enough to speak on applying the Section 230 to general neglence, so I'll concede that point to you until I hear otherwise.

However, I don't think you're going to have much luck demonstrating the prudent action required for negligence. If locking the WiFi were the prudent thing to do to the point that failing to do so is negligent, the manufacturers would be vicariously liable for making the default setting 'off'.

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Could a shorter leash be put on this dog if there existed a notification that, upon connection to a given open network, stated something to the tune of:

"
Welcome. Your activities and actions while connected to this network are your responsibility. You must use it for lawful activities only. Any unlawful or unauthorized usages are punishable to the furthest extent of the law.
"

Or would that simply make "furthest extent" more easily applied to the provider simply because the flat foot on the trail is frustrated and just decides to stop the hunt and arrest the holder of the last clue?

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^ THIS!

I had an open wifi connection for two years - unbeknownst to me - because that's how *Comcast* set it up when they installed our cable internet. I had no reason to believe it was unsecured, that I might want it to be secured, and didn't know enough about it anyway to even ask.

Re: Re:

dwg wrote: "What about going to the source of the open-ness, sir? In other words, how about those who ship routers in an open state? I agree with the framework you lay out in the ether for negligence liability, but I just don't see the duty on the part of the router recipient/owner, and I don't see the foreseeability at all. Is it a case-by-case basis, where Granny gets a pass, but a 16-year-old is liable? Because that seems incredibly shaky. But on the part of the router seller?

I think you grasp the concept of negligence well here, but you don't seem to agree with it. The fact is that granny and a 16 year old just might have different windows of liability. I could certainly see a court saying "this 90 year old woman had no clue, and a reasonably prudent person in her position wouldn't have a clue." On the other hand, a 28 year old computer network engineer would have a clue.

As far as holding the router manufacturer liable goes, I don't think you could push it that far. I hear that question a lot, and it is simply a straw man. By that virtue, how far back would we go? Could we hold the guy in China who dug the silicon out of the ground liable?

Negligence is often a case-by-case analysis. One person might be negligent and in another similar case, the other defendant would not be. But, no, I don't think the router seller would be.

I bet that this debate wouldn't be so heated if Randazza's negligence theory was just that - a theory. But it is not just a theory, it is a practical tool for extortion, and while thinking about it logically, there always be some kind of subconscious awareness of the unethical extortion scheme that brought this "theory" to light.

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All of my rambling can, basically, today at any rate, be summed up with the fact that all of these intrusions in the form of the threat of lawsuits and new laws, all of the direct and indirect threats on liberty, both real and perceived, are directly rooted in and around content providers that, quite simply, are not providing. This is an absolute travesty irrespective and regardless of current and "threatened" laws.

Liberty exists in your pocket too which is rather unfortunate in and of itself, so if one does not have the means to pay to defend it one must either submit or find other means. I definitely and unequivocally believe that no person should submit as a result of providing open connectivity. And that holds true for no matter what transpires as a result that connectivity.

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No, I don't think it would make any difference either especially given the current circumstances. That just makes it that much more of a shame. I was simply fishing for some small thread that could perhaps tie into existing case law around these types of notifications from systems connection related cases or hell even a "contents are hot" type of case.

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Now that's an interesting issue. If Comcast is the one setting it up on your behalf, Randazza's theory would seem to apply to Comcast, especially because of their experience/knowledge, and not to you (unless hiring Comcast is a negligent act...well maybe it's not such a crazy theory).

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The argument seems to be centering around the concept that a guy with a jewelery store leaves his door open but his counters are locked and a "thief" steps inside and just outside the door there is a newspaper stand, the kind that has a slot for the quarter basket for The Evening Post but the papers are stacked on an open rack, and he reaches outside the door and grabs a copy of the newspaper while standing inside the jewelers store (who is not responsible in any way for the open paper stand) and our "thief" opens the paper onto said locked counter top and proceeds to take a couple pictures of some articles. He then folds the paper up neatly and puts it back in the rack and leaves the store on his merry way to a lunch date.

And somebody wants to blame the jeweler for being negligent?

I thought people were supposed to harm people and cause injury as a result of negligence? That seems a proper definition. Charge 10 large because someone with some gumption and a pocket full has a better, self serving interpretation? If anything our jeweler is an accessory to negligence, and the actual fault of this "negligence" falls squarely on The Evening Post folks. And they didn't even loose a paper.

First making the content available is dragged through the courts with preposterous results (to date) and now making the Internet available is in line for more of the same. What do you think can reasonably be next? Oh, right, links, twitter, blackberry messaging and google.

The Internet is CHOCK FULL DONE with copies of "My Content" via illegitimate providers of *copies* or simply links to same and what do we have for choices for legitimate access to EVERYTHING otherwise easily and readily available all over the Internet (in again: CHOCK FULL DONE numbers)? Absolute and corrupt ASS - is what our options are. These guys are crying over spilled milk and they're the ones holding the damn jug and pouring it down the drain. You know what? I'll go milk my own damn cow thankee. 'iffin you try to grab my milk to pour down your drain.. we'll 'em er fightin' words right dare missy.

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That I definitely do not follow I'm afraid.

So if somebody has somehow acquired access to a shell account, in some way shape or form, legal or otherwise, and the machine hosting said shell account is one of twenty nodes behind one address and the user downloads a copy of oh I don't know, somebodies picture of Einstein or something, that the provider of that NAT is not at fault and the "user" could sue the provider of the system or the provider of the picture?

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Basically you're stating the obvious in that the sky is wide open for people that have the desire and means to push the intricacies of semantics onto interpretations of the word negligence to the upper most limit of twisted logic (not entirely unlike frequent assault on some certain founding documents that come to mind) into the realm of creating and defining law where mere mortals simply can not reside.

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I can interpret this approach as a round-house kick on the First Amendment.

Encouraging, fostering, suggesting and imposing limits on open and easy connectivity to a fundamental pipeline of communication with [ and this is the relatively new and unique part ] *the world* could easily end up with the effect of disenfranchising a voice if not hundreds of thousands of them.

Different kettle of fish.

....yes. As a service provider and presumed expert, Comcast should have a different standard applied to them. You can't expect the average citizen to be aware enough or paranoid enough or perhaps even technically literate enough to secure their router.

A cable installer, or some more expert computing professional is another matter. Here you have standards of care and behavior that you would expect of corporations providing a product or professionals.

Any sort of computing professional should be publicly flogged for installing an unsecured cable router.

Copyright Trolls nothing new!

The copyright control agencies have always used copyright law and their superior financial position to shake down businesses because most businesses do not understand the complexity of copyright law. Check out this article in the NY Times written in 1996:

Most businesses simply pay rather than fight a shake down for such violations. Playing background music through a businesses paging system or providing music on hold without a license from a copyright agency is a violation of copyright law and is used as an excuse to engage in a shake down. One of the worst shakedowns was perpetrated by copyright control agencies against restaurants that sang Happy Birthday to You to their patrons without a license from a copyright agency. One large restaurant chain was sued for hundreds of thousands of dollars for a happy birthday to you violation.

The copyright control agencies are now extending their tentacles to shaking down ordinary citizens that have even less financial resources than most businesses.

Unjust financial enrichment of the copyright agencies could be prevented by requiring that the violator receive proper written notice of the violation. If the violator fails to take action to correct the problem, only then could the copyright agency make financial claims against the violator.

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My biggest problem with your theory is that DMCA 230 seems to have quite clearly superseded negligence claims in matters of open wifi.

As Mike pointed out, the statute defines an interactive computer service to include “specifically a service or system that provides access to the Internet.”

Unless I'm missing something crucial, wifi would seem to fall under that definition. One need not be Verizon or AT&T or Google in order to be a provider of an interactive computer service and fall under the safe harbor provisions of the DMCA, which specifically immunizes those providing an interactive computer service from negligence claims based on the actions of users.

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I think I, and I feel somehow unclean for stating this, that the AC has a point though is not expressing it succinctly.

It boils down to what is classified, under law, as a service provider, and if the possessor of the service had the INTENT to create the open networks a provision of service to some type of community.

If it can be shown that Joe Blogs had no intention of creating an open-wifi community access point and instead only had the network world viewable as a result of mistake, not reading the manual (technical knowledge), or by design of the manufacturer (always on unless off) then there is really no intent to become a Service Provider so therefore the Sect 230 defence would not apply.

=============

Though this does not mean they are still Negligent, or for those law students.. It does not pass the snail test ;)

To be negligent a few elements have to be proven, first and foremost is duty.

Does the respondent (Wifi Owner) have a REASONABLE duty to stop nefarious or tortuous acts occurring that might under balance of probabilities create a situation where it harms the plaintiff (IP holder).

The second element is whether there is an actual Breach of that Duty (if a duty exists). This only occurs if the Wifi Owner KNOWINGLY (which is purely subjective and based on reasonableness and community standards) creates the situation that COULD expose the IPHolder to SUBSTANTIAL risk of harm occurring (note it can not be de minimus harm.. ie: tiny or a very low probability of occurrence).

The third element is Causation... This asks whether what the WifiOwner did actually caused the damage to the IPHolder. In other words, would the damage to the IPHolder of occurred anyway no matter what the WifiOwner did? Another part of causation is what is called remoteness, (proximate cause in the USA). This basically asks that even though there is a causation, is the causation so remote as to be unforeseeable. or indeterminable. [This basically stops Kevin Bacon from suing you since you didn't invite him to the party you held because you were on the 4th to 6th step of the separation ;o ]

The next element, and this one is a doozy for all Intellectual Property cases (Copyright, Patent, Trademark) is HARM. Can the plaintiff, in this case Corbin Fisher, show using probable evidence actual harm done by the respondent (Wifi Owner) if the above three elements have been proven.

Because without harm being proven, damages which are used to Restitutio in integrum (restore to original condition.. what neg claims are really all about) can not be given since 'no harm... no foul'

For damages (in this case $10,000) to be given if it went to court, not only do all the elements above need to be proven based on preponderance of evidence (and in Duty must be fair, just and reasonable) actual provable, using the rules of evidence and discovery, needs to be shown.

The elements above, and the big major problem of showing Harm, is the main reason why representatives, in this case Randazza, do NOT want these cases going to court, since they know that even if they can show their is a duty that has been breached and in all likelihood caused harm, they need to show actual PECUNIARY HARM for any damages to be awarded.

The problem is the system worldwide in these sort of civil cases is that the side with the most money in the beginning, wins. Which is why advocacy agencies like EFF are so needed.

Re: Re: Yup

Negligence - The tort of Insurance and snails

I posted this above in a to a reply to Mike, but after reading all the comments I thought it might also be relevant as it's own thread.
--->

I think I, and I feel somehow unclean for stating this, that the AC has a point though is not expressing it succinctly.

It boils down to what is classified, under law, as a service provider, and if the possessor of the service had the INTENT to create the open networks a provision of service to some type of community.

If it can be shown that Joe Blogs had no intention of creating an open-wifi community access point and instead only had the network world viewable as a result of mistake, not reading the manual (technical knowledge), or by design of the manufacturer (always on unless off) then there is really no intent to become a Service Provider so therefore the Sect 230 defence would not apply.

=============

Though this does not mean they are still Negligent, or for those law students.. It does not pass the snail test ;)

To be negligent a few elements have to be proven, first and foremost is duty.

Does the respondent (Wifi Owner) have a REASONABLE DUTY to stop nefarious or tortuous acts occurring that might under balance of probabilities create a situation where it harms the plaintiff (IP holder).

The second element is whether there is an actual Breach of that Duty (if a duty exists). This only occurs if the Wifi Owner KNOWINGLY (which is purely subjective and based on reasonableness and community standards) creates the situation that COULD expose the IPHolder to SUBSTANTIAL risk of harm occurring (note it can not be de minimus harm.. ie: tiny or a very low probability of occurrence).

The third element is Causation... This asks whether what the WifiOwner did actually caused the damage to the IPHolder. In other words, would the damage to the IPHolder of occurred anyway no matter what the WifiOwner did? Another part of causation is what is called remoteness, (proximate cause in the USA). This basically asks that even though there is a causation, is the causation so remote as to be unforeseeable. or indeterminable. [This basically stops Kevin Bacon from suing you since you didn't invite him to the party you held because you were on the 4th to 6th step of the separation ;o ]

The next element, and this one is a doozy for all Intellectual Property cases (Copyright, Patent, Trademark) is HARM. Can the plaintiff, in this case Corbin Fisher, show using probable evidence actual harm done by the respondent (Wifi Owner) if the above three elements have been proven.

Because without harm being proven, damages which are used to Restitutio in integrum (restore to original condition.. what neg claims are really all about) can not be given since 'no harm... no foul'

For damages (in this case $10,000) to be given if it went to court, not only do all the elements above need to be proven based on preponderance of evidence (and in Duty must be fair, just and reasonable) actual provable, using the rules of evidence and discovery, needs to be shown.

The elements above, and the big major problem of showing Harm, is the main reason why representatives, in this case Randazza, do NOT want these cases going to court, since they know that even if they can show their is a duty that has been breached and in all likelihood caused harm, they need to show actual PECUNIARY HARM for any damages to be awarded.

The problem is the system worldwide in these sort of civil cases is that the side with the most money in the beginning, wins. So people will just pay the extortion fees (and Yes it is a form of extortion since it becomes a type of undue influence and/or duress ) which is why advocacy agencies like EFF are so needed.

========

Also for all the AC's who keep saying this place is turning into a Law blog... there is no chance of this since a law blog has AC commentators whom are actually civil, are willing to listen to the opinions of all, and contribute to the conversational threads. This place has very few AC's who actually do this consistently. In other words its more real life and why I prefer TD over the at times dry and mind numbing mainstream law blogs (does not include Popehat, Satyricon, Above the law etc)

Re: Less Dangerous Than An Open Mailbox

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What about possible negligence on the part of Wi-fi providers for not sending you your router closed, with the key for you only?

As far as I know, all WiFi routers are shipped from the manufacturer in a *very* secure state known as "disconnected". You should know what you're doing before you go changing that. There are plenty of competent people you can hire to do it for you, so there's really no excuse.

Wow, its fun picking out AC sock puppets. More fun when the puppeteer shows up and seems all reasonable under their actual id.

I doubt that all of this kerfluffle is actually about trying to establish case law supporting the idea that open wi-fi makes you liable. This is another tool in the toolbox of terror, used to extract payments from those targeted - guilty or innocent. It is another thing he can point to (and Steele will use it as well, he's used other "wins" in your cases to support his own.) as will can get *ARMS THROWN WIDE* THIS MUCH MONEY, but you can stop it all for a low low payment now.

I am so glad your here Mr. Randazza if you could take a moment of your time and share with us the terms of your contract with the Germans.

I'm more interested in the terms of their previous contracts showing the permission of them being granted the right to create a honeypot making them the source of the infringement they then collect IP addresses from and sell for profit.
While briceforshin was quite clear that LMH/CF never seeds the torrents themselves, the Germans are not LMH/CF.
I'm sure you'd like to make sure that the IP collection was done in the most transparent way and had no ethical questions attached to it.

I expect you have a long term contract with them as they have opened an "office" in that snazzy stripmall in Nevada.

I notice the $10,401 is less than the $12,500 you have requested from some of the people you have targeted, offering them a break from the $25,000 because they were onetime members of CorbinFisher.com.
Would it stand to reason your "generosity" stems from the lack of people willing to "settle" these cases currently?

Any comment on the persistent reports of some of your staff offering to settle for a few hundred then being contacted, purportedly by yourself, and being told you never approved a settle of that amount and as they have now signed a contract admitting guilt they need to pay the several thousand you initially sought?

Do you have any regrets over the firestorm started by your statement that no one would consider suicide over your allegations, and then suggesting they could instead lie about what was allegedly downloaded being from the bi-sexual line of movies LMH/CF now offers?

Have you ever publicly named the "expert" who told you that no one would ever consider suicide in the face of being outed by your allegations? You are a lawyer and you should understand the idea of "unnamed experts" is not a factual basis for evidence supporting a case.

Are you angry about the motion to quash in the same case that gave you this settlement? Are you more concerned that the New Jersey court found merit to the other Does motion to quash, but dismissed without prejudice as the motion was similar to the other Does filing that is to be heard Sept 23?

Are you satisfied in your efforts to stamp out this alleged copyright infringement that is having a negative effect on the CF brand? Is the loss of market share helping to drive your efforts to get more settlements to replace that income during your clients transition to its new Nevada studio?

Other than these mass lawsuits, using the novel approach of suing swarms to create conspiracy, have you advised your clients that there are other ways to try and deal with filesharing that would result in much less damage to the brand as a whole?

What are your views on USCG pursuing the case against the grandmother from Minnesota they allege downloaded some of their clients works?
Do you think the fact she does not own a computer might be detrimental to their case? While you seem to be in the camp of "if you pay the bill, its your fault" do you understand this can be seen as a cop out as the complaints always claim that unmasking the subscribers will lead them to the infringer who is responsible? It does seem very unlikely that the grandmother who does not own a computer is a bittorrent user.

Any comment on the work of Evan Stone?
While I think it is much better for those pursing porn related cases he has moved well out of the arena, I think the recent purchase of the US rights to IP Man and IP Man 2 by Funamation might have been driven by investigating how many people were torrenting the movie, and the additional income that could be generated by targeting another demographic who might not be as informed on these types of cases.

I could ask questions all day, I find some of your motivations fascinating.
I find myself applauding your efforts in suing the guy who was creating and selling bootlegs on eBay, and at the same time loathing you for going out of your way to use the specter of "Everyone will know you like gay porn if you don't pay me." and then pretending there are no repercussions in the real world for allegations that might be lacking in merit.

I look forward to your replies, but won't be holding my breath. Each of our previous encounters here result in you leaving without dealing with the questions I raise.

Re: Negligence - The tort of Insurance and snails

But then I've had serious question in my mind about the methodology being used from day one.

I've often told people that unless you hand them a confession, or something that can be twisted into such, that there is minimal chance of one of these cases going into court against a single doe.

There is to much at stake for the entire "business model" that a single court ruling tossing out a required element could bring it all down upon them.

The inherent documented flaws in ip identification covered in several scientific papers, where they had take down notices sent to laser printers on the network for sharing files via bitttorrent.

The ethical question of the lawyer or their agents creating the opportunity for the infringement, and uploading into the swarm to keep it alive as they collect ip addresses. Making the infringement worse to increase the number of targets to "settle" (extort) with. Unclean hands and all of that.

The question of saying the IP will give them the infringer, but all it provides is the person paying the bill not the party responsible for the infringement. They demand payment from this person using legal terms to make them think they are at fault for another persons actions that might have been done without the account holders knowledge.

Public statements about how they will proceed against the account holder by dragging everyone they know into court on a massive fishing expedition for the infringer. See "The Open Wifi Liar" in the TorrentFreak story. Intimidating people with claims of even if you didn't do it your still going to have to pay.

These cases are about using fear to get paid.

Some of the people targeted might be guilty, but many are not. But they are all assumed guilty and treated as such. The letters make demands about not changing the contents of computers, which is interesting as the court order hasn't given them that right yet. And if you share a computer with someone, you have no idea what they have been doing so you gain more fear that something might have been done.

You write a check and make it go away.
Its just easier than the huge unknown where the other side wins millions of dollars against you and your forced to sell organs to pay them off.

Its a nice house, it would be a shame if something happened to it... but said with a piece of dead sheep on the wall so its all legal.

Re: Negligence - The tort of Insurance and snails

A wonderful post, except you seem to have gotten a few details wrong.

Negligence doesn't require intent, it only requires a failure to exercise care. That failure doesn't have to be "with intent", it only has to be shown to have occurred. Not locking down your WiFi is akin to leaving a door open. It's careless, and something that a person would not normally do.

Put another way, without exercising due care by locking their WiFi, it is foreseeable that third parties would use the connection, and that some of those uses may not be legal.

Actual damage was shown in this case (it's the reason there is $401 beyond the 10k). You don't have to go any further.

As for your gripes about the civil system and the "richest one always wins", I would say that if you cannot afford to fight, you shouldn't put yourself in a place to try to defend something that isn't black letter law.

Re: Re: Negligence - The tort of Insurance and snails

Actually I never stated that intent was required in negligence matters, I was talking about intent in regards to the 230 defence, in that "was their an intent to create a open-wifi, and therefore be a provider of service" since if their was no such intent (mens rae) there can be no defence under 230 since in the eyes of the respondent they were not creating the defendable position of being a service provider

Actual damage or for that matter harm has NOT been proven in this case, showing that you have some sort of pecuniary damage by way of media, hyperbole, or "spectral evidence" does not make it a forensically probable and provable fact.

Just because someone settles for whatever reason does not mean that harm has occurred or that they are actually guilty/responsible for the matter, and trying to state otherwise is just doing you no favours whatsoever.

yes I have a gripe about the civil system, and I have no hesitation in stating that I totally agree with tort reform, though with your unethical answer to the ability to 'afford' defensible representation to tort law, you just affirmed why I want the system changed even more now.

Re: Re: Negligence - The tort of Insurance and snails

"Actual damage was shown in this case (it's the reason there is $401 beyond the 10k). You don't have to go any further."

Please show us a court ruling on that subject in this case.
Please show evidence submitted to the court supporting the claim of actual damage that withstood discovery and the adversarial process.

This was a settlement, not created by the court but done by 2 lawyers negotiating. The lawyer for the Doe wants to extract his client from this circus, the lawyers for Plaintiff want to get a piece of paper with the right terms listed to terrorize other people with.

It is not a legal ruling, it is a bludgeon.

Or did we miss the gentleman who signed off on a $250,000 settlement, and that fact was widely talked about. What they didn't cover as much was the actual terms of the agreement where he only has to pay a portion much smaller, and as long as he makes regular payments the amount he owes goes down.

I believe even Steele cited this "victory" in their settlement letters to get people to pay.

While the settlement was approved by the court, it was not created and validated by the court. Both sides said they accepted the terms and the Judge closed the case.

Funny they aren't winning in the civil system, they are using the civil system to extract payments from people who are more willing to settle than to engage in a long battle and be painted publicly as a homosexual or gay porn lover.

Re: Re: Re: Negligence - The tort of Insurance and snails

Before you say anything, I am talking about damages for the allegation of Negligence.. NOT for the allegations (and they are still allegations not proven) for the "innocent infringement" (an oxymoron if I ever read one), "contributory infringement" which was a maybe... but would of been even harder to prove than negligence, and the conspiracy (Oh Gawd... amazed there was no charge for RICO in there either [sorry Marc, just you Americans and your conspiracy theories *runs*]

But still your theory breaks down on harm/damages

In fact harm is required for damages to occur in all these matters, damages are the restitution for harm caused by a breach of something (ex delicto) that was not contractual. without harm no damages.

All the allegations included in the $401 extra would still of had to be proven to have had damages occurred if they had gone to court.

Though I will grant you that if their were statutory damages available that is different since they can be imposed even when the harm that has occurred is de minimus or hard to quantify.

Re: Re: Re: Re: Re: Muddled Observation

In other news about Corbin Fisher, Marc Randazza is representing them in asking the U.S. Patent and Trademark Office why they are blocking Corbin Fisher's attempt to trademark its Corbin Fisher University logo

It seems to me that the USPTO is being a bit of a phallic symbol themselves on this, I mean don't they reside near Washington DC with that big huge pointy phallic symbol from egypt in their area pointing up to the sky?

Only in America can you not allude to sexuality but its ok to cap someone in the arse if they piss ya off! *eyeroll*

Oh and this is where Mr Randazza really stands out and shines, His briefs are the stuff of legends always.

For example read the linked brief/pdf on above link and look at "The Symbolism of the Shaft" where he alludes to the "mentality" of the examiners compared to the rest of society. His sarcasm, wit, and ability to do a beat down on Public servants without them even knowing it is to be honoured, admired and us unworthy ones can only gasp in wonderment and laugh at his opponents... well that's when he's not being a phallic symbol about IP stuff due to his phallicy clients ;)

Re: Re:

An open Wifi network is clearly a system that enables computer access by multiple users. I'm surprised you would argue otherwise. In fact I'm having a hard time understanding how anyone could possibly claim that an open WiFi provider does not qualify under the law.

As for the "name a single court" I'll turn it around. Point to a single ruling that argues otherwise.

You guys are the ones making the claim, not me. That means you should back it up. I'm not saying no court has ever said that. I honestly am not aware of one that has. If you can name one, please do name it. That would be you backing up your claim. I know you're not bothered by facts, but some precedent seems appropriate since you're making the claim.

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Of course my personal definition is irrelevant. If I were to be making a legal argument about what the legal definition is and how courts apply it, I would look it up and provide citations. Mike is making the claim, but not backing it up.

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Actually, I don't want to be a legal blog at all. This is a blog about the business of innovation. You lawyers just keep getting in the way.

Day after day, post after post about legal issues, with all sorts of attempted analysis provided by you. Yeah, you're not a legal blog. Not at all. Sigh. It's obvious to me that you are trying to be a legal blog. You claim that you're not, but you're actions (posts) prove otherwise.

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What about going to the source of the open-ness, sir? In other words, how about those who ship routers in an open state? I agree with the framework you lay out in the ether for negligence liability, but I just don't see the duty on the part of the router recipient/owner, and I don't see the foreseeability at all. Is it a case-by-case basis, where Granny gets a pass, but a 16-year-old is liable?

The reasonableness and foreseeability would depend on the specific circumstances of the would-be tortfeasor. What's negligent for granny is indeed different than what's negligent for the 16-year-old computer geek.

But on the part of the router seller? Well, they know about the open-closed distinction, are uniquely situated to change it before any harm can result, and so should be the ones bearing the duty. So, again: why not sue them? If I drive a car with, let's say, an accelerator that sticks, and I have no reason to know (or, better, the average consumer has no reason to know) about the sticky accelerator or its potential to harm, and I crash into your house because my car won't slow down, am I liable, or is...well, let's say Toyota?

Definitely agree about the manufacturer/seller being potentially liable.

Re: Re:

Ah, right. Never mind that all the sources of routers tell you: installation and setup is as easy as 1-2-3! Complete fail: you don't understand the concept of "who is best situated to stop this harm from occurring" do you? See, that's where some reading might have helped you. Or hiring someone competent to write your post for you--there are plenty of those.

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No offense, but your reductio sucks and you must know it. You seem like a reasonable practitioner and to have done some good work in the past--it therefore surprises me to see such weak arguments as that one coming from you. That you're bringing the, to court to use against humans unconscionable.

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Right: other than "on" and "connected," routers are nice ashtrays. It's only "up to you"'if you know about it--otherwise it's this complex legal concept called an "accident," which sucks when one wants to sue someone.

Open WiFi and negligence

Right on, Mike! Here in Mountain View (Google HQ) I often use Google WiFi. I have my own secured account on it, but that is available only in my house. If I go to the local coffee shop, all that is available is open WiFi, provided by Google.

So, If I use open WiFi, as supported by Google, Google is negligent - or I am?

Re: Re: Re: Negligence - The tort of Insurance and snails

Only because I've been at this longer, much longer than I anticipated. I admire your courage in standing up to your Troll, I've not found myself the target of these tactics yet.

I'm just someone on the internet who heard about something that seemed very wrong. I found a place where there were people terrified by these actions, and I showed them the facts.
I tore down the illusions of this being done by scary powerful men.
I laid out the flaws and missteps that have been made.
I found their spies following my words on the forums and rather than have them banished... I invited them to the table to talk.
I try to find places where I can raise the awareness of others about this, hundreds of thousands of Does have been sued in this country and how much media time has it gotten?
These cases rely on fear and shame to keep moving, I try to shine brighter lights on them.

These tactics need to stop, that does not mean I think they are wrong for wanting to get paid for what they produce.
I think there are much better ways to market the content, and I am disappointed in porn being afraid to embrace new technology.

Why Negligence Doesn't Work

Stay tuned for my follow-up to Mr. Randazza's article (I wrote the original re: open wi-fi is not infringement). The short answer is that negligence causes of action are preempted by section 301 of the Copyright Act.

Re: Re: Re: Re: Negligence - The tort of Insurance and snails

Actually I exaggerated a bit: it is not such a nightmare anymore. It really was when I first learned that I was targeted, I was scared and did not know what to do - even considered paying while I never tried to download any gay pornography - I'm not against those who enjoy this type of entertainment in privacy, but it's just plainly outside of my universe.

I continue with my blog as time permits, pursuing the same goal - to increase awareness. I have 300 page hits a day on average - not a lot, but it keeps me doing what I'm doing.

I understand that sometimes my forum comments look like spam since I almost always link to my blog. I do it deliberately, and I have no intention to monetize the traffic in any form.

While reading TechDirt, TorrentFreak etc., it is easy to fall under an illusion that the majority is educated and at least aware of the grand scam in progress, but it's not true: general public is still in dark. I'm outraged as you are about the lack of media coverage.

Everyone is talking about patent trolls now: my neighbors, coworkers, I even overheard people discussing this in a commuter train. That's happening only because NPR aired its famous program recently. I hope copyright trolling problem will gain at least similar publicity.

Re:

Do you have any regrets over the firestorm started by your statement that no one would consider suicide over your allegations, and then suggesting they could instead lie about what was allegedly downloaded being from the bi-sexual line of movies LMH/CF now offers?

By the way I keep e-mails from a troll victim who claims that he seriously considered suicide. Given the overall sincere tone of his e-mails, I'm pretty much sure that it was just a figure of speech.

Re: Re:

hmm

Not sure if it is the answer or not... But I came to the conclusion is that the only way to fight this crap is to have a ban of lawyers assessable to the masses that are getting sued in this fashion,... start using what works, and stay away from what doesn't work. There are many suits that were won by the little guy, and you just don't see these cases in the mainstream media. It's like the big guy managed to get these cases they lost put on a black list. Power is suppose to help in numbers. You see it all the time, even with money. The only way to stop the power is to fight them back with power.

Re: Re: Re:

Ah, right. Never mind that all the sources of routers tell you: installation and setup is as easy as 1-2-3!

First, as far as I know, that's not true, so please stop making stuff up.

Second, even if *some* manufacturers say something similar, "easy" is a relative and subjective term. Whats "easy" for me may not be for you. If you don't know what you're doing, then you should either educate yourself or hire someone does.

See, that's where some reading might have helped you. Or hiring someone competent to write your post for you--there are plenty of those.

Heh, talk about "complete fail". Resorting to ad hominem attacks is pretty much an admission of that.

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Right: other than "on" and "connected," routers are nice ashtrays.

Kind of like a car. It's kind of useless if all it does is sit in the garage. But, if you don't know how to drive it safely, you should either hire a competent driver or learn before heading out on the public roadways.

It's only "up to you"'if you know about it--otherwise it's this complex legal concept called an "accident," which sucks when one wants to sue someone.

Yep, kind of like driving a car. Not knowing what you're doing isn't really much of an excuse when you have an "accident".

Re: Re: Re: Re: Re:

Kind of. If you are accused of copyright infringement, rightfully or wrongly - does not matter - either hire a lawyer for a couple of your monthly salaries or go to a legal college to educate yourself the sophistry needed to clean your name from being associated with gay porno. Otherwise just fucking shut up and pay. Right?

Re: Re: Re: Re: Re:

Do we also need licenses and insurance for routers now too before being allowed to operate?

Not much of a comparison otherwise.

Can we now pin viruses on whoever sent us the e-mail/att/link/etc...? That will put a dent in MS users. Negligence on their part with malicious intent. Sony was liable for their root-kit weren't they?

"The furor over Sony's DRM software began at the end of October when a U.S. programmer discovered that XCP software on a Sony music CD had installed copy-restriction software on his computer that was hidden using a rootkit. Antivirus companies later discovered Trojan horses that exploited this software to avoid detection and found that another type of Sony DRM, MediaMax, also posed a security risk."http://news.cnet.com/Sony-settles-rootkit-class-action-lawsuit/2100-1002_3-6012173.html

R esponsible for open wi-fi, then you must also be responsible for sending me attachments with a virus included. It is more than a security risk. It could be using my router!

Better fence?

"... if you leave your keys in your car, and someone takes it and drives it into someone’s fence, you’re at least partially responsible for the damage. If the car thief runs off, who should pay for the damage? The fence owner or you? It would seem that between those two parties, you would be more responsible than the fence owner. You wouldn’t say that the fence owner should have built a better fence, would you?"

Actually, I think the fence owner should have considered that by building a fence there it might get hit. Its their fault your car got damaged and they should pay to fix it. Cheap bastards, getting expensive lawyers and trying to get off of paying to fix my car.

Security for data is as secure as you handle it - you can have 256 bit encryption, but if you leave your key in a "hidden" directory on your C: drive... well, leaving your key under your doormat is a nice simile.

Re: hmm

The problem is many of the lawyers on lists to provide "help" have an odd definition of help.

They will get you a "better" settlement. Mind you most of these savings are eaten by paying for this "quality" representation. There is a group somewhere in the Southwest (I forget where atm) that for a flat fee will negotiate with the trolls to get you a "better" settlement.

Then there are lawyers who actually seem to care about the law and get some of these motions thrown out for being filed incorrectly. I often tell people if you disbelieve what I am telling you, talk to a lawyer. The lawyers often respond with the exact same things I am telling them. Some do secure representation, but many opt to stand strong against the "settlement". (read extortion)

The EFF has been contacted on several occasions and always have the diplomatic response of they do not have enough resources to help.
My viewpoint might be skewed, but they seem to be much to busy to help only in the cases involving gay porn.
They refer these people to the list of lawyers offering to help, but having Mr. Randazza listed sorta made that list a bit questionable.

Because the defendants rarely move beyond the Doe stage, they never get a chance to win.

Given the high profile screwups in these cases, one would expect Judges would be more questioning of the tactics being allowed.

- Evan Stone created subpoenas, got information, and sent settlement letters to people even after a court told him no until the lawyers selected to protect the Does rights had their say.

- USCG has named 8.8.8.8 in a Doe lawsuit. That IP address is a DNS provider owned by this unheard of company called Google.

- USCG is suing a grandmother who does not own a computer. This after claiming getting the account holder information would give them the identity of the infringer. Using bittorrent without a computer seems unlikely.

- Evan Stone lied on a copyright application about the date a movie was created to make sure the damages would be statutory instead of actual.

- A firm in Florida used a state law to get information about Does for multiple films in 1 filing, and then threatened Federal cases if you did not pay.

- Films by the client of that FL firm are now getting mass doe suits in several states. I await the chance to see the settlement letters in that case, as none of those films have a US copyright and would be ineligible for anything but actual damages.

- Many of the settlement letters point to huge "win" amounts awarded in other cases. They leave out that those were settlements reached without the benefit of a trial.

- Mr. Randazza offered an "amnesty" for his clients films that left the door open for them to sue you after settling, and the option for them to come at a future date and demand further payment for alleged bad deeds.

These are lawyers using the nuances of the law to extract money from people identified by technology that has been shown to not be conclusive. The settlements are designed to prey on peoples fear of being publicly labeled or having their neighbors dragged into the situation to embarrass you further.

Just once I'd love a Judge to demand that the IP harvesting be proven before allowing the subpoenas to go out. I am unsure if they understand the financial motives these firms have in getting more people named. I am sure they have no idea that it is not as accurate as DNA or a fingerprint. I am sure they do not consider how the allegations being made can be hugely damaging even if proven unfounded.

The rights are all on the table for the copyright holders, and once again we have the people with power/money able to get what they want in a "legal" way.

Re: Re:

I have the same kinds of messages.
They find themselves in a place they do not understand and they only see the worst possible outcome.
It looks like an easy escape, the only answer.
They can't afford to settle and the idea of EVERYONE being told about them shatters them.

And I have to very carefully deconstruct the entire process, and try and get them to stop, breathe, and think.

Why should I "try to remember" that if I've never forgotten it nor done anything that intimates I've ever thought anything but? You're not making sense.

Actually, Mike cited the law, and everyone can look right up above and see that. You, however, did not. I guess it helps to be a liar if you're going to be a copyright industry apologist.

Mike just jumped onto to what Corynne was arguing, adopted her arguments as his own, and then claimed that these arguments "debunked" Randazza. It's all quite hilarious. Mike can't come up with his own legal arguments so he just takes arguments from others, but only if he likes the result of their reasoning. It doesn't matter if the reasoning itself is solid. Mike works backwards, so those details don't matter.

I read a bunch of caselaw last night about who gets immunity under the CDA and who does not. I didn't see ANYTHING that made me think a home user with an open wifi gets CDA immunity. The whole argument is QUITE A STRETCH. Mike and Corynne pretend like it's a slam dunk and no homeowner with an open wifi could ever be liable for negligence since the CDA will protect them every time. The fact is, it's a silly argument, and it's MISLEADING to present it as they do, like it's a sure thing. It's not. Not even close.

You can call me names and pretend I'm a liar and a manipulator, but it's clear to me that I'm pointing out facts. I'm challenging the people you worship, so I understand that you're upset.

Re: Re:

All that reading and you still managed to avoid 47 U.S.C. § 230 : US Code - Section 230? You must have tried really hard to miss that one.

Huh? I did standard legal research, and I started with an annotation: Validity, Construction, and Application of Immunity Provisions of Communications Decency Act, 47 U.S.C.A. § 230, 52 A.L.R. Fed. 2d 37 (2011).

I read through the cases listed there and didn't see anything that would lead me to believe that a homeowner with an open wifi is a "interactive computer service" under the CDA.

Your side is the one claiming that a homeowner with an open wifi is an "interactive computer service" under the CDA. The best you've done is offer the definition in the statute. I'm merely pointing out that if you look at the caselaw that exists interpreting what an "interactive computer service" means in practice, I'm not sure the caselaw does any work for you. If anything, I think it cuts the other way.

If you can point me to some caselaw that supports your position, please do. I'm sure there's an argument there. I'm just wondering what it is.

Re: Re: Re: Re:

It's not ad hom, mate: it's based on the failure of the content in your post. I have no feelings about you at all. Didn't see anything at all about who's situated best to stop the harm--that's the legal point you're going to want to address. Or not, since it's not refutable in this case. Would you argue that someone who bought a Ford Pinto is best situated to fix the gas tank so it doesn't explode? The part that could have been put in to stop the explosions would have cost Ford $1.70 for each car, but Ford decided not to. Ford was found liable for Pinto deaths. Please tell me you see the analogy--if you don't, an ad hom reply may be coming.

Re: Re: Re: Re: Re:

Ever hear of "no-fault" insurance? It's what we all have, in every state. That's because accidents are inevitable. Tell me now how accidents in one case shouldn't result in personal liability but accidents in the other case should.

Re: Re: Negligence - The tort of Insurance and snails

"Not locking down your WiFi is akin to leaving a door open. It's careless, and something that a person would not normally do."

That's wrong. It's something that someone who knows not to leave it open would not normally do. And the majority of the 'open wi-fi' defendants don't know to do it--do you think they're either that completely lazy as to knowingly risk these lawsuits or that they're all so anti-copyright that they actively want someone to siphon off their wi-fi and download content?

Your premise fails. It's nothing like the door, although that's an attractive analogy, being so simple.

Re: Re: Re:

For example, check out the blind guy in last week's LA Weekly cover story. Sued for downloading porn. Blind guy: sued for downloading porn. Knew this because his wife, the only one in the house who could read the mail, told him so.

Sounds funny, perhaps--but it's not to the defendant. He insisted on remaining anonymous for fear of losing his job. I know that's not suicide, but it does show one version of the havoc that being extorted wreaks on a life. Here, Randazza is willing to do that in exchange for being able to test a terrible reductio ad absurdum in court. I thought that experimentation on human subjects was illegal?

Re:

Those'll unfortunately be available, assuming the copyright on the content in question was registered pre- the alleged downloading. Let's hope that's not the case and the plaintiff has to show actual damages. That should be fun.

Re: Re: Re: Re: Re: Re: Re:

Re: Re: Re: Re:

No. I am not entirely sure. But courts don't generally go about creating duties of care willy nilly. Given that there is a substantial social benefit to people leaving their WiFi open (free internet access for anyone in range) I find it doubtful that courts will buy that new duty of care. But hey, I'm not a lawyer and I'm not a legal scholar, so I could be completely off base.

My understanding is also that for liability to be established from negligence, it must be shown that the breach of that duty is the proximate cause of the harm. Here, the harm is the copyright being infringed upon. (At least the law says it is a harm) It would be a simple matter to show that the wireless being open is not the proximate cause. After all, someone could have come to your house and asked for your WPA key and you could have given it to them. But obviously, there is no duty to not lend your Internet connection to a stranger or to not have an Internet connection. (That would be quite ridiculous) So even if there is a duty, the breach of that duty is certainly not the proximate cause so there is no negligence.

Re: Re: Re: Re: Re: Re:

Of course, they don't need to sue anyone, but I don't have a problem with suing for copyright infringement when you have reasonable grounds for doing so.

I'm sympathetic to both sides in cases like these where there are likely (a) a significant number of people getting falsely accused, and (b) a significant number of people falsely claiming that they are falsely accused.

Re: Re:

Not if your only successful claim is negligence, though.

I was wondering why the settlement was broken down in this manner monetarily, and it might be because the plaintiff wants to use past settlements for "negligence" claims as some sort of evidence of actual harm.

Free the WiFis

What an interesting though, free the WiFi. Everyone open up your WiFi, install a firmware such as OpenWRT/DD-WRT/Tomatoe on your router, dedicate 80% of your bandwidth to use by your personal network/computers by way of VLAN and MAC filtering, then allow the WiFi the other 20% for free and open access to all.

If I can walk down the street and never miss a step without WiFi, I can imagine dozens of legal advantages.

Re: Re: Re: Re:

I don't think you should expect to be taken seriously if you're going to claim that every citizen might have a duty to prevent their fellow citizens from committing copyright infringement. I think that's the dumbest thing I've heard all month.

Re: Re: Negligence - The tort of Insurance and snails

Oh look you had a cut and paste failure.

let me fix it

"[...] a law blog has AC commentators whom are actually civil, are willing to listen to the opinions of all, and contribute to the conversational threads. This place has very few AC's who actually do this consistently. [emphasis added]"

See what you did there? You missed the part at the end of my sentence that alluded to only SOME and therefore by definition not ALL of the AC's as you seem to surmise.

I will leave it to now to the forum gallery to figure out the next part of this lesson, in which they can now point to one of those inconsistent AC's.